Even after almost a century after the enactment of the Child Restraint Marriage Act in 1929, marriages among minors continue to be a contentious legal subject. The British-era law has given way by the Prohibition of Child Marriage Act (PCMA), which was passed by parliament in 2006, and is the principal Union statute on this matter to date. The legislation purportedly lays down the norm that any marriage solemnised between a man under the age of 21 years and a woman under the age of 18 years shall be deemed to be illegal.
Apparently, this norm has been challenged by the recent amendment to the Rajasthan Compulsory Registration of Marriages Act (RCRMA), 2009 passed in the Rajasthan State Legislature on September 18. Section 8 of the amended Act now requires all marriages in the state where the parties are under the age of 21 (in the case of the groom) and 18 (in the case of the bride) to be compulsorily registered within 30 days from the date of solemnisation.
Assuming that this amendment might be aimed at legitimising child marriages in Rajasthan, a region notorious for the practice, this move has drawn a wave of criticism and caused confusion.
The first question that meets that eye is whether the amended law can bestow legality on something that is deemed to be illegal. To understand this, we must dig deeper into the notion of illegality conferred on child marriages under PCMA. The notion that solemnising a child marriage is prohibited stems from Sections 9 and 10 of the statute – where the former penalises a male adult groom for entering into such a union, and the latter holds any person who ‘performs, conducts, directs or abets any child marriage’ liable for punishment. However, it misses the more relevant side of the coin affecting the validity of child marriages – that all child marriages are not automatically void.
Section 3 lays down the default position that any child marriage is merely voidable at the option of the party who was under the stipulated age threshold at the time of solemnisation. This option may be exercised within two years of the said party attaining the age of majority. In other words, a child marriage, if permitted under the applicable personal law of the parties, continues to be valid unless nullified on the petition of a minor party to the marriage.
The statute contains an exception, though. According to Section 12, a child marriage shall be treated as void ab initio, or as if it never happened, if solemnised during circumstances where the child –
“(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes.”
The practice of child marriage thus continues to traverse this grey zone of incomplete illegality. Seen in this light, the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021 is not contradicting anything in the Union legislation. Even where child marriages as considered automatically void under Section 12 of PCMA, nullity is a post facto determination, to be arrived at by the court after reviewing whether the facts around solemnisation match any of the circumstances enumerated in the provision and therefore, the requirement for compulsory registration does not deter subsequent judicial nullification.
Lack of clarity on the objective
Under attack, the legislative position of the ruling Indian National Congress in support of the amendment has not been very convincing. The party line so far has been that the alteration in Section 8 of RCRMA is a measure required to implement the Supreme Court verdict rendered in Seema v. Ashwani Kumar in 2006. Such an explanation would presuppose that the original statute, passed three years after the said decision was not sufficiently compliant with the judicial injunction calling for compulsory registration of marriages with the object of countering inter alia the practice of child marriage.
In this context, a reading of the unamended Section 8 queers the pitch. The requirement of registering all marriages, including those where the parties were under the age of 21 years existed in the original provision. It may be argued that this position already reflected the apparent intent of covering child marriages within the scope of compulsory registration.
Double jeopardy
Another angle of looking at it could be in recognising the difference in the conferment of legal responsibility of registering marriages under RCRMA. Both the original and amended Section 8 stipulate that the parents or guardians of underage parties are responsible for submitting the memorandum of registration. The only significant alteration then appears to be in so far as the responsibility of the parents/guardians of brides aged between 18 and 21 years has been waived, thereby displacing the same on to the brides themselves. If this is indeed the intended implication of the amendment, the provision assumes more consistency with the definition of ‘child’ under PCMA, accordingly recognising complete agency in a bride aged above 18 years in matters of marriage.
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A compulsory obligation of registering child marriages, which are as observed above not presumptively void, can help the government in securing more reliable data on the practice and come up with appropriate policies in adapting with the practice. However, the mandate for the same in the Rajasthan statute runs a severe risk of being a dead letter of the law. Section 12 of RCRMA declares the failure to submit the memorandum for registering a marriage to be a punishable offence. This should motivate parents/guardians of parties to any child marriage to notify the concerned Registrar of Marriages of the same.
But, in doing so they would run the risk of being suspected of being culpable under Section 10 of PCMA in the criminal capacity of directing or abetting the child marriage in the first place. On the flip side, in case such parents/guardians had no role to play in the solemnisation of the marriage, why would they go ahead and register it, and in doing so, recognise a marriage solemnised without their ‘blessings’, as well as draw the undesired attention of the law on themselves?
Barking up the wrong tree
Recent research suggests that the criminal model of combating child marriages does not result in meeting declared objectives. As a study carried out by Partners in Law and Development states, policies on prevention of child abuse and child marriages must not ignore the reality of adolescent sexuality founded on consent and the institution of marriage as the hegemonic space for exploring the same.
Contrary to the stated objective of arming minor brides of escaping marriages solemnised without their consent, PCMA has regularly armed disgruntled parents of underage parties entering a consensual union, often in elopement, with an institutional weapon to restore the authoritative pre-marital status quo. Ironically, this also problematises further the dichotomy of consent as a legal concept. By defining the age of consent, criminal law has reduced it to an abstraction without context. On the other hand, the requirement of consent of parties in a marriage is still not a universal requirement for the validity of a legitimate conjugal union across family laws in India.
The present state of the formal law denies positive personality to any individual defined as a ‘child’ who is capable of expressing consent. Thus, the ‘child’ is situated purely as an object, i.e., a ‘victim’. At the same time, the ‘child’ is capable of expressing culpable intent as a ‘juvenile in conflict with law’. This is a contradiction that ends up policing consent where it is present instead of encouraging a constructive culture of consent that can be developed through adolescence into adulthood.
This is akin to magically wishing that on attaining the age of majority, individuals whose mental structures were deemed incapable of conceiving consent would suddenly grow one on their 18th or 21st birthdays, as the case may be. The singular responsibility cast on parents/guardians to register child marriages under RCRMA is also reflective of the same status quo.
Restoring responsible personhood to young individuals
Hence, it is high time that the official discourse on child marriage grew out of the myopia that is still very much stuck in the century-old colonial rhetoric of moral outrage. At the very least, the monolithic subject of ‘child marriage’ must be broken into the realms of the consensual and the non-consensual, recognising them as distinct issues requiring differential treatment. Doing so has the potential of establishing adolescent sexuality as a psychosocial reality that must not be denied in policymaking.
This must not be conflated as an argument in favour of encouraging child marriages, but calls for an engagement with the adolescent population in an environment that respects them as legal subjects and their capacity as autonomous rational persons. Soon as the powers that be come to terms with this much-required shift in paradigm, easier it would be to devise an effective sex education curriculum, which is non-negotiable if we wish to even begin conceptualising consent in an age-appropriate manner.
This becomes all the more important when we take into account the cultural secrecy around what a conjugal relationship entails, the legitimate knowledge of which must only be acquired experientially in the post-nuptial reality. Therefore, the significance of consent is also a qualitative one – developing the capacity in young individuals to know what exactly they wish to consent to: in other words, the ability to express informed consent.
This must go hand in hand with essentialising consent of the parties as a minimum condition for a valid marriage in arriving at a socio-cultural vocabulary which challenges the hegemony that speaks of the agency of parents/guardians getting their wards married instead of the agency of the individuals getting married. Recognising adolescents as responsible participants in the construction of consent culture, instead of as ‘children’ who do not know what they do, shall surely help in their evolution as persons who know what they should do.
Ratul Das is an assistant professor of law at Xavier Law School, St. Xavier’s University, Kolkata. You can reach him on Instagram @boiraagi.
Featured image: Representational image. Photo: Reuters/Amit Dave